Brief on Jailing Child Support Debtors in Unconstitutional Debtor Prisons

I. INCARCERATION FOR CIVIL CONTEMPT IS AN INAPPROPRIATE REMEDY TO ENFORCE A CHILD SUPPORT OBLIGATION AGAINST AN IMPOVERISHED AND INVOLUNTARILY UNEMPLOYED PARTY.

The issue of whether civil contempt is an appropriate remedy to enforce a child support order against a destitute party is one of first impression for both the Tennessee Court of Appeals and the Tennessee Supreme Court. To be imprisoned for civil contempt, the contemnor must be able to perform the act required to gain his or her release. Leonard v. Leonard, 207 Tenn. 609, 341 S.W.2d 740 (Tenn. 1960) (emphasis added). In civil contempt, it is often said that the convicted person holds the keys to the jail in her own pocket. See Shillitani v. United States, 384 U.S. 364 (1966). The burden is on the contemnor to show inability to perform, and where the alleged contemnor has "voluntarily and contumaciously brought on himself disability to obey an order or decree, he cannot avail himself of a plea of inability to obey as a defense to a charge of contempt." Bradshaw v. Bradshaw, 23 Tenn.App. 359, 133 S.W.2d 617, 619 (Tenn.App.1939) (citations omitted).

A person who is unemployed due to a lack of education, a lack of means of transportation, a lack of required skills, and time constraints in rearing her small children is NOT “voluntarily and contumaciously� bringing unemployment on herself.[12] The trial court held “Respondent's voluntary and willful failures or refusal to diligently seek a job or fail to keep and maintain a job though she had the ability to do so prevents her from asserting inability to pay as a defense to this contempt action.� [Order, R. 21]. That statement demonstrates the trial court's own lack of understanding of CIVIL contempt and its abuse of discretion. In characterizing the appellant as willfully underemployed, the trial court was focusing on past behavior and attempting to punish the appellant, which are wholly inappropriate for a civil contempt hearing.

When “inability to pay� equates to “inability to secure one's own release from jail,� then “inability to pay� unambiguously becomes an absolute defense to incarceration for civil contempt under both U.S. and Tennessee constitutional law. Leonard, supra, 207 Tenn. at 609, Shillitani, supra, 384 U.S. at 364. For a destitute person, civil contempt is an inappropriate remedy to secure payment of a child support obligation: the party cannot be coerced into paying child support that instant, because she has no funds to pay it. Under such circumstances, incarcerating the appellant, and other destitute child support debtors similarly situated, serves no purpose at all. Tennessee's Court of Appeals lags behind the courts of our neighboring states in recognizing this fact.

"The law in Alabama is well settled that imprisonment for contempt should never be imposed by a judge where the failure to pay . . ., is not from contumacy, but from inability to comply with the order." Ex parte Talbert, 419 So. 2d 240, 241 (Ala. Civ. App. 1982). See also Boykin v. Boykin, 659 So. 2d 664 (Ala. Civ. App. 1995). When the punishment no longer has any coercive effect, it becomes impossible to enforce. Id. "Because it is impossible to coerce that which is beyond a person's power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process." Id. Therefore, although one may be guilty of contempt for failing to comply with a court's order imposing a child support obligation, "imprisonment as a means of coercing payment, may not be imposed if there is shown a present inability to pay." Ex parte Talbert, 419 So. 2d at 241."

Savage v. Ingram, 675 So. 2d 892, __ (Ala. Civ. App. 1996) (bold added).

A trial court, however, may not continue incarceration for civil contempt when the respondent lacks the ability to purge himself. Poole v. Wright, 188 Ga. 255, 258 (3 S.E.2d 731) (1939). Imprisonment under civil sanctions is always conditional and a party found in contempt may apply for release at any time upon a showing of inability to pay. Carlton v. Carlton, 44 Ga. 216, 220 (1871); see also Dan E. McConaughey, Georgia Divorce, Alimony and Child Custody, §§ 14-6 (1997). As we have long held, "the moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party." Carlton, 44 Ga. at 220. Because the purpose of civil contempt is to provide a remedy and to obtain compliance with the trial court's orders, the justification for imprisonment is lost when that compliance is impossible. The trial court found and DHR admits that Hughes lacks the ability to purge himself because he lacks money and property and his only source of income is manual labor. Under these circumstances, the trial court abused its discretion in continuing Hughes' incarceration for civil contempt. Judgment reversed. All the Justices concur.

Hughes v. Dept. of Human Resources, 269 Ga. 587, ___, 502 S.E.2d 233, ___ (Ga. 1998) (bold added). Incarcerating the appellant did not lead her to transfer money to the appellee, because she had no funds to transfer. Incarcerating the appellant did not coerce her into accepting employment she was then willfully refusing to accept.[13] In fact, the appellant received no job offers immediately prior to her contempt hearing, nor did she receive any offers for many months after her release from jail. The appellant acknowledges that the unreported Court of Appeals decisions cited in this brief do not serve as binding precedents for this court. In the unreported case below, the Tennessee Court of Appeals has already held that criminal contempt is an inappropriate remedy to enforce child support against an indigent party:

[T]the lower court found the Father had the ability to pay child support but did not and therefore was guilty of at least nine counts of willful contempt. After a careful review of the record, and adherence to Rule 13(d), Tenn. R. App. P., we disagree and conclude that the State has failed to meet its burden to show that the Father had the financial ability to comply with the child support order. . . . Finally, there was no proof that the Father had in his possession sufficient funds to pay the judgment against him. In fact, the evidence was that the Father had very little money. . . . In conclusion, we find that there remains a substantial and reasonable doubt that the Father was able to earn enough income or that he was in possession of sufficient funds to meet his support obligations. Thus, we find that there was insufficient evidence to conclude that the Father was guilty of criminal contempt.

State ex rel. Richardson v. Richardson, No. 01-A-01-9706-CV00274 (Tenn. Ct. App. 1998) (reprinted in the addendum filed concurrently with this brief). The time has long been overdue for the Court of Appeals to extend the ruling of Richardson to the sanction of civil contempt against indigent child support debtors.

Because this issue presents one of first impression for the Tennessee appellate courts, it is appropriate to look to guidance from other states. Following the highest court of the state of Maryland in its unanimous decision in Lynch v. Lynch, 342 Md.509, 677 A.2d 584 (1996), and its numerous progeny, the appellant invites the Tennessee Court of Appeals to resolve the issue now before the court by holding: (1) A defendant who lacks the present financial ability to comply with a child support order, whether or not that inability is purposeful, may neither be held in civil contempt nor imprisoned. Alternatively, the court may wish to hold: (2) In child support cases, the defendant's inabilty to pay precludes imprisonment for civil contempt, and an unintentional inability to pay precludes imprisonment for either civil or criminal contempt.

The Maryland high court's reasoning is particularly germane to the issue confronting the Tennessee Court of Appeals in this appeal:

[T]he goal of civil contempt proceedings, to coerce compliance with a court order entered primarily for the benefit of private parties to a suit, cannot be accomplished when the responsible party is unable, for whatever reason, to comply. The same is true in the case of court-ordered child support payments. If the responsible party does not have the money, or any means of obtaining it, payment cannot be coerced. Indeed, this is true whether the responsible party chose intentionally to frustrate the court order, as, for example, acting in bad faith, to impoverish him or herself, or whether his or her inability is unintentional. . . .Whether a defendant has failed to pay court ordered support when he or she had the ability to do so and whether that defendant has, in bad faith, caused his or her own present inability to comply, with the intent of frustrating the court order, are material, and indeed, necessary, considerations bearing on whether a defendant should be punished. Those considerations do not address whether the defendant is in civil contempt, the object of which is remedial - to force compliance. Even if the present inability to comply is the product of the defendant's bad faith, compliance still cannot be coerced by civil contempt.

Lynch v. Lynch, 342 Md.509, 521_22, 677 A.2d 584, 590 (1996).

Similarly, the Supreme Court of Mississippi noted that a public policy exception exists to the Mississippi constitutional prohibition against incarcerating someone for failing to pay a civil debt. Child support obligations and alimony are two such exceptions that may be enforced with contempt proceedings. However, even when a public policy exception is found, such as child support enforcement, “we have held that an individual must be given the opportunity to show he or she is without the present ability to discharge the obligation, and thereby avoid being held in contempt. Jones v. Hargrove, 516 So. 2d 1354 (Miss. 1987).� In Re: Nichols, 749 So. 2d 68, __ (Miss. 1999). This case reflects numerous Mississippi Supreme Court precedents including Jones v. Hargrove , 516 So. 2d 1354 (Miss. 1987), where the Court stated:

The law is well settled that upon establishment of a prima facie case of contempt, the defendant may avoid judgment of contempt by establishing that he is without present ability to discharge his obligation, but he has the burden of proving his inability to pay, and such a showing must be made with particularity and not in general terms. Clements v. Young , 481 So.2d 263, 271 (Miss.1985). Nothing in this opinion should be construed to challenge these basic principles. It is also a well-settled rule in this state that the court's power to commit a person to jail until he complies with the terms of a decree depends upon his present ability to comply with the decree. Wilborn v. Wilborn, 258 So. 2d 804, 805 (Miss.1972).

516 So.2d at 1357. Civil contempt is an inappropriate enforcement mechanism against impoverished and indigent parties, who lack the “present ability� to pay child support or pay a purge amount for civil contempt and secure their own release from jail. The Mississippi Supreme Court summarized this point nicely in its concluding sentence in Nichols: “The (appellees) are free to collect the judgment by execution, garnishment or any other available lawful means so long as it does not include imprisonment.� In Re: Nichols, 749 So. 2d 68, __ (Miss. 1999).

To understand why civil contempt is inappropriate to enforce child support orders upon an indigent party, consider a classic example of coercive civil contempt: the jailing of Susan McDougal for failing to answer questions from the Whitewater Special Prosecutor. In theory, Susan McDougal could have secured her own release from jail by agreeing to answer those questions. Susan McDougal theoretically had the power to obtain her own release, i.e., she had the keys to the jailhouse in her pocket. In contrast, Gwen Knox did not have the power to obtain her own release from incarceration. The only way she could secure her own release from jail in February 1999 was to pay $1,000, and she did not have access to or control over that much money. Gwen Knox was impoverished, and that is an objective fact clearly established by her affidavits and proven by events based on the length of time she remained incarcerated when she desperately wanted her freedom. See Ex parte Rojo, 925 S.W.2d 654, ___ (Tex. 1996) (citing In re Dustman, 538 S.W.2d at 410 (duration of relator's incarceration corroborates her indigency and inability to pay)).

II. THE TRIAL COURT'S PRIOR ORDERS IN THIS CASE AND OTHERS SIMILARLY SITUATED HAVE CREATED AN UNCONSTITUTIONAL DEBTORS' PRISON REGIME

Neither the trial court nor the opposing counsel ever addressed appellant's contention that her incarceration amounted to an unlawful debtor's prison. The following quotation from the Sixth Circuit[14] summarizes succinctly the injustice visited upon the appellant and other similarly situated destitute child support debtors throughout Tennessee.

The government faulted her for not trying to make arrangements to slowly pay back the $235.00 she was ordered to pay. The government does not explain what arrangements a welfare mother with one child could make to repay a debt on a total income of $135.00 a month. The attitude and beliefs of the United States Attorney's Office for the Western District of Kentucky notwithstanding, there are no debtor's prisons in this country. Banks v. United States, 614 F.2d 95, 100 n.13 (6th Cir., 1980).

Similarly in this case, the state's attorney faulted Ms. Knox for not trying to make arrangements to pay more child support and reduce the arrearage that she had been ordered to pay. The government did not explain what arrangements a welfare mother with three dependent children under age 5 could make to repay a debt on a total income of $55 a month.[15] The attitude and beliefs of the Child Support Enforcement attorneys notwithstanding, there can be no debtor's prisons in Anderson County or any other county in Tennessee.

The Tennessee Supreme Court has stated in Going v. Going, 148 Tenn. 522 at 552, 256 S.W. 890 at 898 (1923) that a debtor, such as Ms. Knox, cannot be imprisoned merely for failing to find work with which to pay the arrearage. And as late as 1990, this judicial prohibition of debtor prisons was endorsed and followed by the Tennessee Court of Appeals:

The State argues that under the circumstances of these cases, the respondents must show (with proof beyond their mere oral testimony) that they cannot borrow the money with which to purge themselves of the contempt. See Ex Parte Hennig, 559 S.W.2d 401 (Tex. Civ. App. 1977); Ex Parte Rine, 603 S.W.2d 268 (Tex. Civ. App. 1980). Our Supreme Court, however, considered and rejected that argument in Going v. Going, 148 Tenn. 522 at 552, 256 S.W. 890 at 898 (1923). In that case the court stated the proposition in this way: "Some courts, indeed, have gone to the length of saying that a husband who has no property, but is able to work, must be imprisoned, the theory being that this will put the pressure on him to raise the money somehow." Relying on decisions from South Carolina, Alabama, and California, the Court in Going adopted what it called the "contrary and ... better reasoned" view of the question. The Court went so far as to quote with approval decisions from those other states that indicated a person could not be imprisoned merely for the failure to find work with which to pay the arrearage. State ex rel. Everson v. Gooch and State ex rel. Alderson v. Gentry, 1990 WL 3976 at p.2 (Tenn. Ct. App. 1990).

In the appeal now before the court, the trial court declared that Ms. Knox was an "able-bodied" person and concluded that she was willfully underemployed.[16] Such summary conclusions by the court cannot form the basis for incarcerating someone for civil contempt. A lack of job opportunities for people without vocational or college educations is an economic reality, and no judicial fiat will cure this economic circumstance. Appellant asserts that a debtor's prison regime, in which impoverished and unemployed people are sentenced to jail for failing to pay civil debts [child support] far beyond their means, violates both the Due Process Clause of the Fourteenth Amendment as well as the Cruel and Unusual Punishment Clause of the Eighth Amendment (as applied to the states through the Due Process Clause of the Fourteenth Amendment) to the U.S. Constitution. In addition to the Cruel and Unusual Punishments Clause, the Eight Amendment also contains the Excessive Fines and Excessive Bail Clauses.[17] Together these three clauses mandate fair and just sentencing, and a debtor prison sentence is neither fair, nor just.

Furthermore, Art. I, Sect. 18 of the Tennessee Constitution proscribes the state legislature from enacting any law that would create a debtor prison. It follows that if the Tennessee legislature cannot pass any law authorizing a court to create a debtor prison regime, and Tennessee trial courts lack the inherent authority to create such a regime, then the Anderson County Juvenile Court lacked authority to create a debtor prison for Gwen Knox and abused its contempt power.

Finally, Art. I, Sect. 16 of the Tennessee Constitution prohibits cruel and unusual punishments. The Tennessee Supreme Court has frequently interpreted the Tennessee Constitution as conferring more rights upon citizens than do the similar sections of the United States Constitution. See, e.g., State v. Dusina, 764 S.W.2d 766 (Tenn. 1989) (holding that our state constitution's right to jury trial is even broader than the federal constitutional right). Given the appellant lacked funds to purge herself of civil contempt, then the appellant's eight-day incarceration was a cruel and unusual punishment in violation of Art. I, Sect. 16 of the Tennessee Constitution.

In response to these arguments, the AG previously argued "Ms. Knox asserts that the juvenile court's orders created an unconstitutional debtor's prison. . . . She bases her attack on what she labels the juvenile court's `summary conclusion' that she was `able-bodied' and `willfully underemployed.'" [Appellee's original brief filed in 1999 at 16]. The AG has erroneously stated the entire gist of the appellant's debtor prison argument.

A debtor prison occurs when a party owes a civil debt to another, that party lacks the income or assets to pay that debt regardless of whether the inability to pay is willful or involuntary, and a court sentences the party to prison with or without a purge clause calling for payment, which the party could not afford to pay in any event. The United States abandoned the practice of creating debtor prisons in the 1830s and 1840s, and the Tennessee Constitution contains a specific prohibition against them.

Nevertheless, the AG's cavalier attitude towards incarcerating destitute, impoverished, and indigent child support obligors has not escaped the notice of legal commentators.

The entire arena of Family Law has become a domain of Constitutional violations and usurpation of civil rights. What a normal person would consider a Debtor's Prison has been instituted. To usurp the Constitution, the courts have "legislated" a perversion of the law declaring "contempt" as the new Debtor's Prison Mantra by stating it is not a debtor's prison because the jailing for contempt can be remedied upon clearing the contempt (i.e. paying the DEBT! (aka Debtor's Prison)). One man who earns $70 a week as a street musician is in jail now and will NOT be allowed to get out unless he can come up with $28,000. [63] . . . A California appeals court also declared that some Child Support incarcerations were a violation of the 13th Amendment for involuntary servitude.[64]. . . . Nearly every state has legislation to seize bank accounts and real property without a court order (for “child� support) eliminating due process without a sworn statement that the money is owed. In child support politics, the Constitution has become passé and encumbers or impedes the cash machine that has been created. In this entire domain of “Family Law� the Constitution as we know it has ceased to exist. "State judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights."[67] Many "deadbeat" [parents] are just plain “deadbroke�.[69] They are humiliated and bankrupted by a system that hides "alimony" in child support payments. . . .The deadbeat dad myth, is just that, a myth. [Non-custodial parents] want accountability and equity in a system that is both unconstitutional and out of control.[71]. [Non-custodial parents] are being destroyed by a system that seeks to squeeze every ounce of money possible before discarding them, with disdain for [their] essential roles as nurturing parents, protectors, role models, and caretakers of their children. A [non-custodial parent] in Canada (a country with similar custody policies and child support “guidelines� as the US) recently killed himself after being ordered to pay TWICE his income in support payments [72].

Footnotes: [63] Man is jailed again in Child Support battle, The [New Jersey] Star Ledger, Timothy O'Conner, March 19, 2000. [64] LLR No. 9609060.CA Moss V. Moss, September 25, 1996. [67] Goss v. State of Illinois, 312 F2d. 1279 (US App Ct, Illinois, 1963). [69] Some 'Deadbeat' Dads Are Dead Broke, David Crary, Associated Press, November 7, 1999 [71] Father's protests deserve airing, Kathleen Parker, USA Today, November 8, 1999 [72] Anti_Male Bias in Family Courts blamed for Man's Suicide, couldn't afford support payments, backers say, Donna Laframboise, National Post, March 23, 2000.

Joint Statement of Dr. Richard Weiss, Director of Children's Rights Council of Alabama, and William Wood, Coordinator for the Children's Legal Foundation and the Justice Coalition, concerning H.R. 1488, The "Hyde_Woolsey" Child Support Bill, March 16, 2000, Human Resources Subcommittee of the House Ways and Means Committee, Washington, D.C., (bold added).

The demonization of noncustodial parents is used to justify all manner of inhumane treatment. Sylvia Folk, a noncustodial mother, testified before Congress that she was incarcerated for seventy-two days for nonpayment. The judge candidly acknowledged his awareness that she lacked the money to pay but vowed to, and did, hold her until the ransom was paid by her church. Ms. Folk's treatment is by no means uncommon. As Family Court Judge L. Mendel Rivers, Jr., explained: "The problem is, chronic non-supporters do not have dependable jobs, nor tax refunds, nor seizable property. That's why they are chronic. . . . As cruel as it sounds, the one remedy that almost always works is incarceration. We family court judges call it "the magic fountain." . . . Of course, there is no magic. The money is paid by his mother, or by the second wife, or by some other innocent who perhaps had to liquidate her life's savings."

The theory is that child support is set to meet the child's needs within the limits of the obligor's ability to pay. When the difference between theory and reality is so great that the required revenue can only be generated through medieval kidnappings for ransom, in the style of Judge Rivers, the system must ultimately collapse of its own weight. This is exactly what is happening.

Ronald K. Henry, Child Support at a Crossroads: When the Real World Intrudes Upon Academics and Advocates, 33 Family Law Quarterly 235, 240 (Spring 1999) (citations omitted) (bold added). The article goes on to describe deplorable debt collection practices, similar to those experienced by the appellant in the case at bar.

Every year the federal and state governments spend more money on child support enforcement only to report larger caseloads, backlogs, and arrearages. The collection tactics practiced for child support debt are tolerated for no other form of debt in American society, yet after every round of new coercions, we find that the problem has only worsened. We have delayed the realization that child support obligations imposed on low-income obligors are not sustainable but the truth cannot be suppressed forever. Frontline enforcement workers who begin with zeal their crusade against deadbeats end up reporting that "I just couldn't stand what they were doing to people. I got a call from a homeless shelter and was told that I had put a man and . . . his four children on the street because I had put an enforcement order . . . for 50% of his income. I was devastated. That was the beginning of the end for me, because I think that was the first time I was in touch with the ramifications of what I was doing."

Ibid., at 240 - 241, (quoting former Los Angeles deputy district attorney Elisa Baker) (bold added). This law review article is a fantastic piece of forward-looking research. A copy of the law review article in its entirety was attached to the appellant's reply brief [Reply Brief, Arch. R] submitted in 1999 and is thus contained in the archived record.

The appellant urges the Tennessee Court of Appeals to strike down the statewide practice of incarcerating indigent child support debtors as unconstitutional, before a federal court has to intervene and enforce these citizens' FEDERAL rights against debtor prisons.

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Dr. Michael A. S. Guth, Ph.D., J.D. is a Professor of Financial Economics and Law for several universities with on-line degree programs and an attorney at law in Tennessee. He writes legal briefs and appellate briefs for law firms as well as his own clients. See http://riskmgmt.biz/ On the retail side, his law practice seeks to empower individuals to represent themselves in court without a lawyer. He assists these pro se parties by drafting court documents (pleadings) and performing legal research. See http://riskmgmt.biz/prose.htm for contact information.